The Stakes in Roberts’s Nomination

If you like the Patriot Act and Guantánamo, you'll love John
Roberts. More than anything else, to fill Sandra Day O'Connor's seat on the Supreme Court, the Bush White House sought an advocate for ever-expanding executive branch powers. The stakes in Roberts's nomination could not be higher. Bruce Shapiro reports.

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July 20, 2005

Judge John Roberts is a white male who has spent his entire adult life in Washington. Those facts themselves mean nothing, but they do beg a question: What could be so compelling about Judge Roberts as a Supreme Court candidate that the White House was willing to forswear all claims on ethnic diversity and all geographical political advantage, not to mention the express desire of Laura Bush and countless other women to see a nominee of their gender?

To understand Judge Roberts’s unique appeal, forget for a moment “conservative,” “textualist,” “original intent” and the other shorthand with which get-ahead Republican law school grads watermark their résumés. Look instead at a single case decided by Judge Roberts and two other members of the DC Court of Appeals less than a week ago. As it happened, the day before that ruling was released, President Bush interviewed Judge Roberts at the White House. Judge Roberts, it is widely reported, aced his interview; but his appeals court decision due for publication just twenty-four hours later–about the rights of prisoners at Guantánamo Bay–was, in effect, the essay question.

Here is the question: Do the obligations of the Geneva Conventions apply to prisoners seized in Afghanistan? And can the President convene military trials, unreviewable by any courts and Congress? The case involves Salim Ahmed Hamdan, allegedly a driver for Osama bin Laden, captured on the post-9/11 battlefield and held in Camp Delta. Last year a federal judge shut down Hamdan’s trial and up to a dozen other military tribunals. As convened by the Pentagon, those drumhead tribunals, wrote the lower court, amounted to a violation of the Geneva Treaty and an unconstitutional seizure of power by the President.

Whatever Judge Roberts’s performance in his interview with the President, whatever his sterling report card as litigator and jurist, we can be sure there was only one acceptable answer to the Guantánamo essay question, and the judge gave it. He voted, along with his two appeals court colleagues, all three of them Reagan or Bush appointees, against Geneva Convention protections for Guantánamo captives, in scathing language ordering the military tribunals forward, empowering the President, and the President alone, to determine those prisoners’ fate.

More than anything else, to fill Sandra Day O’Connor’s seat on the Supreme Court, the Bush White House sought an advocate for ever-expanding executive branch powers. With a raft of antiterrorism and Patriot Act cases in the judicial pipeline, seeking relief from federal laws and international standards on interrogation, torture and the treatment of prisoners, the Bush Administration badly needs a friend like Roberts on the Supreme Court–a friend who shares its view that the President’s authority in the “war on terror” is above judicial review, and counts more than acts of Congress or international treaties. In other words, if you like the Patriot Act and Guantánamo, you’ll love John Roberts.

Roberts started his career as a protégé of Justice Rehnquist. The Chief Justice’s distinctly activist vision–of conservative means of expanding the authority of presidents while stripping back federal regulations on business and civil rights–shaped Roberts’s views. Then Roberts spent years embedded in the executive branch, arguing cases in the Supreme Court on behalf of the Reagan and first Bush Administrations’ efforts to promote school prayer, restrict abortion and punish flag desecrators.

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Perhaps most telling is Roberts’s brief track record on the federal bench on individual rights, a threshold issue not just for the left but conservative libertarians. A few years back, Washington, DC, police arrested a child for eating a single french fry on the Metro, during a zero-tolerance crackdown on subway-rule violators: arrrested her, handcuffed her, fingerprinted her, threw her in the back of a squad car and held that 12-year-old in lockup for three hours. The child’s mother sensibly pointed out in a lawsuit that an adult committing the same offense would have been issued a ticket, not treated like a dangerous felon. Judge Roberts rejected the mother’s plea for sanity: Arresting a 12-year-old like a suspect on Cops for eating on the subway, Roberts wrote, advanced “the legitimate goal of promoting parental awareness and involvement with children who commit delinquent acts.” Even in red states, parents may not spare much enthusiasm for a judge who would lock up their 12-year-old for public consumption of McDonald’s fries.

The french-fry case suggests that behind Judge Roberts’s famous amiablity–which has won him influential friends in both parties–lies a far more doctrinaire personality. Whiffs of that ideological rigidity leak out of his careful opinions and briefs. Hostility to environmental regulation? Yes, at least in his ruling in a California land-development case in which he sought to weaken the Endangered Species Act. Hostility to reproductive rights? As a deputy to solicitor general Ken Starr in the Reagan years, he curried favor with the antiabortion right by adding an irrelevant footnote to his briefs in a family-planning-funding case, arguing that Roe v. Wade was “wrongly decided and should be overturned.” In his appeals-court confirmation hearings, Roberts said this footnote simply reflected Administration policy, adding that he regards Roe as settled law; but his willingness to go beyond the call of duty and politicize his briefs suggests, at a minimum, enthusiasm for revisiting the issue.

President Bush may not have had a “litmus test” on Roe v. Wade, but there was one very clear litmus test: membership in the insular GOP judicial patronage network. Of the names floated as Supreme Court finalists in the past week, most were members of the Federalist Society, a GOP employment agency masquerading as conservative counterweight to the ABA. Judge Roberts–whose Supreme Court aspirations have long been widely known in Washington–is a prince of the right-wing legal family.

The President has also, after a long search, managed to find a Supreme Court candidate who in many ways looks remarkably like himself: born in the Northeast (in Roberts’s case, Buffalo), heir to old-line power (his father was a US Steel executive), moved to a red state (Indiana), Ivy League-educated (Harvard, Harvard Law). From the day of his graduation from law school, Judge Roberts has held no job except those secured through conservative Republican patronage. With the selection of Judge Roberts, President Bush hopes that the Rehnquist Revolution will continue long after the ailing Chief Justice retires. The stakes in Roberts’s nomination could not be higher.